Michael Paulsen - PEGC Project to Enforce the Geneva ... Executive/paulsen_myth_of...Michael Paulsen February 18, 2004 PAULSEN PP2.DOC 01/29/04 12:44 PM 601 THE IRREPRESSIBLE MYTH

NORTHWESTERN UNIVERSITY SCHOOL OF LAW

CONSTITUTIONAL THEORY COLLOQUIUM SERIES

THE IRREPRESSIBLE MYTH OF MARBURY

Michael Paulsen

February 18, 2004

cga102

PAULSEN PP2.DOC 01/29/04 12:44 PM

601

THE IRREPRESSIBLE MYTH OF MARBURY

Michael Stokes Paulsen*

I. INTRODUCTION

Nearly all of American constitutional law today rests on a myth.The myth, presented as standard history both in junior high civics textsand in advanced law school courses on constitutional law, runssomething like this: A long, long time ago — 1803, if the storyteller istrying to be precise — in the famous case of Marbury v. Madison,1 theSupreme Court of the United States created the doctrine of “judicialreview.” Judicial review is the power of the Supreme Court to decidethe meaning of the Constitution and to strike down laws that theCourt finds unconstitutional.

As befits the name of the court from which the doctrine emanates,the Supreme Court’s power of judicial review — the power, in ChiefJustice John Marshall’s famous words in Marbury, “to say what thelaw is”2 — is supreme. The Congress, the President, the states — in-deed, “We the People” who “ordain[ed] and establish[ed]”3 theConstitution — are all bound by the Supreme Court’s pronounce-ments. Thus, the decisions of the Supreme Court become, in effect,part of the Constitution itself. Even the Supreme Court is bound by itsown precedents, at least most of the time. Occasionally the Courtneeds to make landmark decisions that revise prior understandings, inorder to keep the Constitution up to date with the times. When itdoes, that revised understanding becomes part of the supreme law ofthe land. Other than through the adoption of a constitutional amend-

* © Copyright Michael Stokes Paulsen 2003. Briggs & Morgan Professor of Law,University of Minnesota Law School. Graduate, John Marshall Elementary School (Wausau,Wisconsin, 1969). — Ed. Many people have influenced my thinking about Marbury v.Madison over the course of the years — so many that it is impossible to thank them all indi-vidually (or even remember all of them). I nonetheless would like to give special thanks tothose who read and commented on this specific manuscript (Dan Farber, Casey Duncan,Dale Carpenter, and John Nagle), to the other participants at this 200th anniversary sympo-sium, and to the editors of the Michigan Law Review.

The title of this Essay is inspired by John Hart Ely’s The Irrepressible Myth of Erie, 87HARV. L. REV. 693 (1974). Professor Ely, who died this year, was one of the greatest consti-tutional scholars of our era. His thoughtfulness, insights, and good humor will long continueto serve as an inspiration and model for other scholars, as they have for me.

1. 5 U.S. (1 Cranch) 137 (1803).

2. Marbury, 5 U.S. (1 Cranch) at 177.

3. U.S. CONST. pmbl.


602 Michigan Law Review [Vol. 101:ppp

ment, however, the Supreme Court is the final authority on constitu-tional change.

Judicial review (the myth continues) thus serves as the ultimatecheck on the powers of the other branches of government, and is oneof the unique, crowning features of our constitutional democracy. Thefinal authority of the Supreme Court to interpret the Constitution haswithstood the test of time. It has survived periodic efforts by the po-litical branches, advanced during times of crisis (the Civil War and theGreat Depression) or out of short-term political opposition to initiallyunpopular or controversial rulings (like Brown v. Board of Education4

and Roe v. Wade5), to undermine this essential feature of our constitu-tional order. Through it all — Dred Scott6 and the Civil War, the NewDeal Court-packing plan, resistance to Brown, the Nixon Tapes case,7

the Vietnam War, the quest to overrule Roe v. Wade — the authorityof the Supreme Court as the final interpreter of the Constitution hasstood firm. Indeed, the Court’s authority over constitutional interpre-tation by now must be regarded, rightly, as one of the pillars of ourconstitutional order, on par with the Constitution itself.

So the myth goes.But nearly every feature of the myth is wrong. For openers,

Marbury v. Madison did not create the concept of judicial review, but(in this respect) applied well-established principles. The idea thatcourts possess an independent power and duty to interpret the law,and in the course of doing so must refuse to give effect to acts of thelegislature that contravene the Constitution, was well accepted by thetime Marbury rolled around, more than a dozen years after theConstitution was ratified. Such a power and duty was contemplated bythe Framers of the Constitution, publicly defended in AlexanderHamilton’s brilliant Federalist No. 78 (as well as other ratificationdebates), and well-recognized in the courts of many states for yearsprior to Marbury.8

Moreover, and also contrary to the mythology that has come tosurround Marbury, the power of judicial review was never understoodby proponents and defenders of the Constitution as a power of judicialsupremacy over the other branches, much less one of judicial exclusiv-ity in constitutional interpretation. Nothing in the text of the

4. 347 U.S. 483 (1954).

5. 410 U.S. 113 (1973).

6. Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857).

7. United States v. Nixon, 418 U.S. 683 (1974).

8. See generally SYLVIA SNOWISS, JUDICIAL REVIEW AND THE LAW OF THECONSTITUTION 13-89 (1990) (setting forth pamphlets, legislative debates, and casesaccepting the doctrine of judicial review from independence to Marbury); William VanAlstyne, A Critical Guide to Marbury v. Madison, 1969 DUKE L.J. 1, 16-29 (explaining thatthe argument for judicial review was familiar and accepted by the time of Marbury).


August 2003] Irrepressible Myth 603

Constitution supports a claim of judicial supremacy. The courts pos-sess “[t]he judicial Power of the United States”9 and that power ex-tends to “Cases, in Law and Equity, arising under this Constitution,”10

but nothing in the logic or language of such a statement of constitu-tionally authorized judicial jurisdiction implies judicial supremacy overthe other branches of government. Jurisdiction to decide cases doesnot entail special guardianship over the Constitution. (If anyone couldlay claim to the title of Special Trustee or Lord Protector of theConstitution, it would be the President, for whom the Constitutionprescribes a unique oath that he will, “to the best of my Ability,preserve, protect, and defend the Constitution of the UnitedStates.”).11

None of the Constitution’s authors or proponents ever suggestedthat the Constitution provides for judicial supremacy over the otherbranches in constitutional interpretation. All prominent defenses ofthe Constitution at the time of its adoption explicitly deny — indeed,take pains to refute — any such notion, which was sometimes chargedby opponents of ratification but never accepted by the document’s de-fenders.12

Nothing in Chief Justice Marshall’s opinion in Marbury makessuch a claim of judicial supremacy either. The standard civics-book(and law school casebook) myth misrepresents and distorts what JohnMarshall and the Framers understood to be the power of judicial re-view: a coordinate, coequal power of courts to judge for themselves theconformity of acts of the other two branches with the fundamental law

9. U.S. CONST. art. III, § 1.

10. U.S. CONST. art. III, § 2, cl.1.

11. U.S. CONST. art. II, § 1, cl. 8. I do not claim that the President’s oath makes him theunique protector of the Constitution, vested with interpretive supremacy over the otherbranches. I claim only that the judiciary is not the unique protector of the Constitution,vested with interpretive supremacy over the other branches.

The correct answer, James Madison and I submit, is that none of the branches has inter-pretive supremacy over the others. See THE FEDERALIST NO. 49, at 313 (James Madison)(Isaac Kramnick ed., 1987) (“The several departments being perfectly co-ordinate by theterms of their common commission, neither of them, it is evident, can pretend to an exclu-sive or superior right of settling the boundaries between their respective powers.”) For anextended defense, see Michael Stokes Paulsen, The Most Dangerous Branch: ExecutivePower to Say What the Law Is, 83 GEO. L.J. 217 (1994) [hereinafter, Paulsen, The MostDangerous Branch].

12. Michael Stokes Paulsen, Nixon Now: The Courts and the Presidency AfterTwenty-Five Years, 83 MINN. L. REV. 1337, 1349-51 (1999) [hereinafter Paulsen, Nixon Now](collecting authorities). Alexander Hamilton’s The Federalist No. 78 is a careful defense ofthe propriety of judicial review while simultaneously an emphatic refutation of theanti-Federalist writer Brutus’s accusation of judicial supremacy. See Paulsen, Nixon Now,supra, at 1350 n.39; id. at 1353-56 (collecting sources); see also GARRY WILLS, EXPLAININGAMERICA: THE FEDERALIST 126-36 (1981). But cf. JACK N. RAKOVE, ORIGINALMEANINGS: POLITICS AND IDEAS IN THE MAKING OF THE CONSTITUTION 186-87 (1997)(intimating that Brutus, rather than Hamilton, may have correctly understood the judicialsupremacist implications of Article III of the Constitution).



of the Constitution, and to refuse to give acts contradicting theConstitution any force or effect insofar as application of the judicialpower is concerned.

That was a big enough deal in its own right. The idea that writtenconstitutions could serve as judicially enforceable checks on thepowers of legislatures elected by the people is an important, distinc-tively American, contribution to what the founding generation calledthe science of politics.13 Written constitutionalism, combined withseparation of powers — including an independent judiciary deriving itsauthority directly from the Constitution and not from the otherbranches — yields an independent judicial power to interpret and ap-ply the Constitution in cases before the courts. That is the propositionof Marbury v. Madison, and it is a proposition of considerable signifi-cance (even if not original to the case).

But that proposition is nowhere close to a holding, or claim, of ju-dicial supremacy over the other branches — a notion that would havebeen anathema to the founding generation, and that the SupremeCourt in Marbury appeared explicitly to disavow.14 Nothing inMarbury supports the modern myth of judicial supremacy in interpre-tation of the Constitution. Quite the contrary, Marbury’s holding ofjudicial review rests on premises of separation of powers that are fun-damentally inconsistent with the assertion by any one branch of thefederal government of a superior power of constitutional interpreta-tion over the others.

The logic of Marbury implies not, as it is so widely assumed today,judicial supremacy, but constitutional supremacy — the supremacy ofthe document itself over misapplications of its dictates by any and allsubordinate agencies created by it. As a corollary, Marbury also standsfor the independent obligation of each coordinate branch of the na-tional government to be governed by that document rather than bydepartures from it committed by the other branches. Under ChiefJustice John Marshall’s reasoning (and Alexander Hamilton’s beforehim in Federalist No. 78), the duty and power of judicial review do notmean the judiciary is supreme over the Constitution. Rather, the dutyand power of judicial review exist in the first place because theConstitution is supreme over the judiciary and governs its conduct. AsMarshall wrote in Marbury, “the framers of the constitution contem-plated that instrument as a rule for the government of courts, as wellas of the legislature.”15

13. See generally GORDON S. WOOD, THE CREATION OF THE AMERICAN REPUBLIC1776-1787, at 3, passim (1969).

14. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 170 (1803) (disclaiming “all preten-sions to . . . jurisdiction” over matters in which political branches “have a discretion”).

15. Marbury, 5 U.S. (1 Cranch) at 179-80.



It is the fundamental betrayal of Marbury’s premises andMarbury’s logic that accounts for nearly all of what is wrong with“constitutional law” today. The twin peaks of constitutional law todayare judicial supremacy and interpretive license. Marbury refutes bothpropositions. Correctly read, Marbury stands for constitutional su-premacy rather than judicial supremacy. And constitutional supremacyimplies strict textualism as a controlling method of constitutional in-terpretation, not free-wheeling judicial discretion.

This Essay proceeds in two Parts. First, I will discuss JohnMarshall’s near-flawless argument for judicial review. This should befamiliar ground, but it is not. Marbury truly fits Mark Twain’s defini-tion of a “classic”: a work that everybody praises but nobody actuallyreads.16 Marbury is invoked today for the myth it has become, not forits actual reasoning and logic. I will challenge the reader to attendclosely to what Marbury actually says — the premises set forth; thelogic of the argument — and to shed the judicial supremacist precon-ceptions with which most modern readers, thoroughly corrupted bythe Myth of Marbury, come to the case. If one does so, I believe, onewill be forced to conclude that the case cannot bear a judicial su-premacist reading. Marbury stands instead for constitutional suprem-acy, judicial independence, interpretive coordinacy, and the personalresponsibility of all who swear an oath to support the Constitution tobe guided by their best understanding of the Constitution and not pli-antly to accede to violations of the Constitution by other governmen-tal actors.

The second half of the Essay will then sketch the ratherremarkable — even stunning — but entirely logical implications ofMarbury’s argument. Constitutional supremacy, interpretive coordi-nacy, and personal interpretive responsibility imply parallel duties oftruly independent constitutional interpretation — that is, interpreta-tion not controlled by the Supreme Court’s decisions — by the execu-tive and legislative branches of the national government, by all judges(irrespective of stare decisis), by juries, and even by agencies of stategovernment. In short, if Marbury’s reasoning is right, nearly all of ourconstitutional practice today is wrong.

16. Cf. MARK TWAIN, FOLLOWING THE EQUATOR: A JOURNEY AROUND THE WORLD241 (1897). Akhil Amar has made the same observation. Akhil Reed Amar, Marbury,Section 13, and the Original Jurisdiction of the Supreme Court, 56 U. CHI. L. REV. 443, 445(1989).



II. MARBURY’S LOGIC

Marbury v. Madison is, of course, wrong about a great manythings.17 But on the essential point for which the case is justly cele-brated — the judiciary’s power of independent constitutional reviewof the lawfulness of acts of the other branches — Marbury’s premisesare unassailable, its logic impeccable, and its rhetoric beautiful. All ofwhich makes its contemporary betrayal so lamentable.

As has been noted by too many people to count, Chief JusticeJohn Marshall’s opinion for the Court in Marbury is questionable,perhaps even deliberately mischievous, on a number of points.18 But itis hard to find fault in Marshall’s proof for judicial review. In part, thisis because the argument was so well-rehearsed in the work of earlierwriters and prior judicial opinions. Talent borrows and genius steals.And John Marshall was undoubtedly a talented guy. In Marbury,Marshall displays his skills as a subtle and gifted plagiarist, shamelesslyborrowing from Hamilton’s The Federalist No. 78. But he does add hisown distinctive and important twist, as we shall see.

There are three core points to Marshall’s argument for judicial re-view in Marbury. They can be summarized briefly, but then deserveattention in detail.

First, Marshall’s absolutely foundational starting point is the prin-ciple of constitutional supremacy. Marshall finds this postulate inher-ent in the nature of written constitutionalism. It is reinforced by somestrongly supportive, specific textual provisions. It is not, however, anargument that derives its forces from any particular provision, butfrom the document as a whole. It is the fact of having a written consti-tution, and the nature of written constitutionalism, that does the work.

Marshall’s second core proposition in Marbury is the interpretiveindependence of the several branches of government, a consequencethat flows both from constitutional supremacy and, implicitly, from thestructural separation of powers of the various departments of

17. For an irreverent look at the case, see Michael Stokes Paulsen, Marbury’sWrongness, 20 CONST. COMM. ___ (forthcoming 2003) [hereinafter Paulsen, Marbury’sWrongness].

18. The phrase that has caught on is Robert McCloskey’s description of the opinion as a“masterpiece of indirection,” ROBERT G. MCCLOSKEY, THE AMERICAN SUPREME COURT40 (1960), in which Marshall simultaneously criticized the Jefferson administration aslawless; asserted the authority (in a proper case) to issue direct, coercive judicial orders toexecutive branch officers (at least with respect to ministerial duties and at least with respectto subordinate executive branch officers); avoided a direct confrontation with the President(which the Court surely would have lost) by finding no jurisdiction to issue the requestedwrit of mandamus to the Secretary of State; and in the process claimed the power of the ju-diciary to strike down acts of the legislature that the judiciary finds to violate theConstitution. Sandy Levinson has characterized the opinion as “intellectually dishonest.”Sanford Levinson, Law as Literature, 60 TEXAS L. REV. 373, 389 (1982). Whether or notMarshall was dishonest, a lot of what the opinion says would seem to be just plain wrong.Paulsen, Marbury’s Wrongness, supra note 17.



government. Marshall’s contention is that it would be utterly inconsis-tent with the first principle of constitutional supremacy — indeed,inconsistent to the point of absurdity — for one branch to be able tobind another with its (by hypothesis) erroneous constitutional actionsor views.

The third proposition of Marbury reinforces the conclusion fol-lowing from the first two points, and it is Marshall’s distinctive contri-bution to the traditional argument for judicial review. The obligationof the oath to support “this Constitution” requires that an interpreterhave direct, unmediated recourse to the Constitution.

Marshall’s three arguments yield the specific conclusion of thepower of judicial review of legislative acts — the legitimate power ofcourts to refuse to give effect to legislative acts that the courts find tobe in violation of a rule of law supplied by the Constitution. But hisarguments are fully generalizable: they equally support parallelpowers of constitutional review by each branch of the actions of theothers; and, moreover, they refute decisively any notion of judicial su-premacy.

Let us begin where Marshall does, with the postulate of constitu-tional supremacy. Marshall begins his argument for judicial review,intriguingly, with the first principle of the American Revolution: theright of the people to establish such principles for their ownself-government as they deem most conducive to their well-being; thepriority of those fundamental principles over the actions of govern-ment that depart from them; and the ultimate power of the people tojudge whether such departures have occurred and to take remedial ac-tion. In a sense, the premises of the Declaration of Independence thusparallel the premises of judicial review, and one can hear distinct ech-oes of American revolutionary thought in the opening lines ofMarshall’s argument in Marbury:

That the people have an original right to establish, for their future gov-ernment, such principles as, in their opinion, shall most conduce to theirown happiness, is the basis on which the whole American fabric has beenerected. The exercise of this original right is a very great exertion; norcan it, nor ought it to be frequently repeated. The principles, therefore,so established, are deemed fundamental. And as the authority fromwhich they proceed is supreme, and can seldom act, they are designed tobe permanent.19

This is the cornerstone from which Marshall proceeds. TheConstitution, as an original act of self-government by the supremeauthority — “We the People” — must be regarded as supreme lawlimiting all government. This proposition is reinforced, later in theMarbury opinion, by noting Article VI’s reference to the Constitution




as “the supreme law of the land,”20 but it is, characteristically for Mar-shall, a structural inference — a deduction from the nature of self-government and written constitutionalism, more than a specific text —that establishes the postulate that the Constitution is supreme law.

Marshall continues:This original and supreme will [that is, the People] organizes the gov-ernment, and assigns to different departments their respective powers. Itmay either stop here, or establish certain limits not to be transcended bythose departments. The government of the United States is of the latterdescription. The powers of the legislature are defined and limited; andthat those limits may not be mistaken, or forgotten, the constitution iswritten. To what purpose are powers limited, and to what purpose is thatlimitation committed to writing, if these limits may, at any time, be passedby those intended to be restrained? The distinction between a governmentwith limited and unlimited powers is abolished, if those limits do notconfine the persons on whom they are imposed, and if acts prohibited andacts allowed, are of equal obligation.21

Note how Marshall’s argument is a general one, not necessarily limitedto legislative violations of the Constitution. The Constitution’s alloca-tion of powers establishes “limits not to be transcended” by any of thedifferent departments. The powers of the legislature are defined andlimited in writing, but the same is of course true of the executive andthe judiciary. Those limitations are binding, or else written constitu-tionalism — the power of the People to establish limits on their gov-ernment agents — is abolished.

Marshall then draws the conclusion — deduces the theorem — thatlegislative enactments that violate the Constitution are void, since theonly alternative is the unacceptable one of denying the supremacy ofthe written Constitution:

It is a proposition too plain to be contested, that the constitution controlsany legislative act repugnant to it; or, that the legislature may alter theconstitution by an ordinary act.

Between these alternatives there is no middle ground. The constitu-tion is either a superior, paramount law, unchangeable by ordinarymeans, or it is on a level with ordinary legislative acts, and, like otheracts, is alterable when the legislature shall please to alter it.

If the former part of the alternative be true, then a legislative actcontrary to the constitution is not law: if the latter part be true, then writ-ten constitutions are absurd attempts, on the part of the people, to limit apower in its own nature illimitable.

20. Marbury, 5 U.S. (1 Cranch) at 180 (quoting, apparently, Art. VI, cl. 2 of theConstitution).

21. Id. at 176-77 (emphasis added).



Certainly all those who framed written constitutions contemplatethem as forming the fundamental and paramount law of the nation, andconsequently, the theory of every such government must be, that an actof the legislature, repugnant to the constitution, is void.

This theory is essentially attached to a written constitution, and isconsequently to be considered, by this court, as one of the fundamentalprinciples of our society. It is not therefore to be lost sight of in the furtherconsideration of this subject.22

This fundamental principle of constitutional supremacy is,however, “lost sight of” in almost all further consideration of the sub-ject of judicial review by today’s academics, judges, lawyers, and stu-dents. They rush to a line that shows up a few paragraphs later in theopinion — “It is emphatically the province and duty of the judicial de-partment to say what the law is”23 — but wrench it from context.Marshall’s argument, to this point, has been that the writtenConstitution prevails over the inconsistent actions of government orelse the Constitution is meaningless. And this point (as I will developbelow) surely applies to the judiciary as well as the legislature. Indeed,one can (and, in a moment, I will) repeat Marshall’s argument to thispoint, substituting the words “court” for “legislature” and “judicialjudgment” for “legislative act,” with no change in the logic and flow ofthe argument. And, of course, one can make precisely the same argu-ment for “president” and “executive action.” Thus, it is a proposition“too plain to be contested” that either the Constitution controls theactions of the President and the decisions of the judiciary, or that thePresident and Supreme Court may alter the Constitution by their or-dinary actions. If the Constitution is the “fundamental and paramountlaw of the nation,” then, under the logic of Marbury, the theory of ourgovernment must be that “an act [of the President, or of the courts],repugnant to the Constitution, is void” in the same way as an act of thelegislature.

This principle, not “to be lost sight of in the further considerationof this subject,” helps to frame Marshall’s second step in the argumentfor judicial review in Marbury. That step is to ask whether the judici-ary must give effect to unconstitutional enactments of the legislature:“If an act of the legislature, repugnant to the constitution is void, doesit, notwithstanding its invalidity, bind the courts, and oblige them togive it effect? Or, in other words, though it be not law, does it consti-tute a rule as operative as if it was a law?”24

22. Id. at 177 (emphasis added).

23. Id.

24. Id.



This, Marshall says bluntly, would be ridiculous. It “would be tooverthrow in fact what was established in theory.”25 It would be,Marshall says (in one of my favorite judicial phrases of all time), “anabsurdity too gross to be insisted on.”26

Is this because the Court, and not Congress, is designated as theauthoritative interpreter of the Constitution? The next line inMarbury is the oft-quoted one that many take as supporting such aview: “It is emphatically the province and duty of the judicial depart-ment to say what the law is.”27 But this does not get one very far. It isjust a sonorous paraphrase of Hamilton’s line in The Federalist No. 78that “[t]he interpretation of the laws is the proper and peculiar prov-ince of the courts.”28 Neither Marshall’s version nor Hamilton’s claimsexclusive or superior interpretive authority for the courts. Moreover,often neglected is the immediately following sentences from the sameparagraph of Marbury, which explain why it is the province of courtsto say what the law is: “Those who apply the rule to particular cases,must of necessity expound and interpret that rule. If two laws conflictwith each other, the courts must decide on the operation of each.”29

This is a far cry from a claim of judicial supremacy. It is merely astatement that, when performing the judicial task calls for decidingwhether an act of Congress departs from the Constitution, the courtsare up to the task. It is within the judicial province to make such a de-termination, and to make it independently of what Congress has de-termined. (Remember: the whole point Marshall is trying to make isthat the courts are not bound by Congress’s say-so — that this wouldbe an “absurdity too gross to be insisted on.”30) Making those types ofdeterminations is no different in principle from the work courts do allthe time when faced with conflicting statutes (a point Marshall alsolifts straight from The Federalist No. 78).31 But it is a huge and illogicalstretch, one certainly not warranted by the “emphatically the prov-ince” sentence and indeed quite inconsistent with the rest ofMarshall’s argument, to move from the proposition that the courts arecompetent to determine constitutional cases to the proposition that thecourts’ views bind everybody else. The Myth of Marbury is simply notvery well grounded in the actual language of Marbury.

25. Id.

26. Id.

27. Id.

28. THE FEDERALIST NO. 78, at 439 (Alexander Hamilton) (Isaac Kramnick ed., 1987).


30. Id.

31. THE FEDERALIST, supra note 28, at 439 (discussing judicial determination of the ef-fect of inconsistent laws — “it is the province of the courts to liquidate and fix their meaningand operation” — and its similarities and differences with judicial determination of the ef-fect of inconsistent constitutional and statutory provisions).



In fact, the same arguments that Marshall uses to develop theproposition of independent judicial interpretation tend to support theconclusion that the other branches are similarly competent to interpretthe Constitution and likewise not bound by the erroneous interpreta-tions of their fellow branches:

Those then who controvert the principle that the constitution is to beconsidered, in court, as a paramount law, are reduced to the necessity ofmaintaining that courts must close their eyes on the constitution, and seeonly the law.

This doctrine would subvert the very foundation of all written consti-tutions. It would declare that an act which, according to the principlesand theory of our government, is entirely void, is yet, in practice, com-pletely obligatory. It would declare that if the legislature shall do what isexpressly forbidden, such act, notwithstanding the express prohibition, isin reality effectual. It would be giving to the legislature a practical andreal omnipotence, with the same breath which professes to restrict theirpowers within narrow limits. It is prescribing limits, and declaring thatthose limits may be passed at pleasure.32

Such a view, Marshall warns, “reduces to nothing what we havedeemed the greatest improvement on political institutions — a writtenconstitution . . . .” That, he says, is “sufficient, in America” to rejectthe contention.33

What is truly arresting about Marshall’s arguments here — at leastto eyes not conditioned to reading Marbury through judicial suprema-cist lenses and shut to what Marbury actually says — is that the exactsame reasoning would seem to apply with equal force to executive andlegislative constitutional review of the propriety of acts of the judici-ary. If the nature of a written constitution implies enforceable limita-tions on the powers exercised by the organs of government createdthereunder, it implies limitations on the powers of courts, as well asCongress and the President. (Just a few paragraphs later, Marshall willwrite that the Constitution is an instrument “for the government ofcourts, as well as of the legislature.”34) If requiring courts to carry outacts of the legislature contrary to the limits set by the Constitution“would overthrow in fact what was established in theory” and consti-tute “an absurdity too gross to be insisted on,” so too in principle re-quiring the political branches to carry out decisions or precedents ofthe courts contrary to the limits set by the Constitution likewisewould, absurdly, “overthrow in fact what was established in theory.”

If the Constitution supplies rules and principles that Congress andthe President must apply in performing their duties, just as it supplies


33. Id.

34. Id. at 180.



rules and principles that courts must apply in performing theirs, areCongress and the President permitted to interpret the Constitution di-rectly, or are they required to “close their eyes on the constitution”and “see only” the decisions of the courts? Marbury says that such arestriction, at least where urged on courts, “would subvert the veryfoundation of all written constitutions.”35 Why this would not equallybe true if the tables were turned is hard to answer, unless one were toassume judicial infallibility and perfect will-less-ness by the courts. Butassuming that the courts might, like the legislature, misinterpret ormisapply the Constitution, to then require the political branches to bebound by the courts’ departure from the “fundamental and paramountlaw of the nation” would similarly be to “declare that an act” — here,an act of the judiciary — “which, according to the principles andtheory of our government, is entirely void, is yet, in practice, com-pletely obligatory.”36 It would be to declare that if the courts do “whatis expressly forbidden, such act, notwithstanding the express prohibi-tion, is in reality effectual.”37 It would be giving to the courts “a practi-cal and real omnipotence, with the same breath which professes to re-strict their powers within narrow limits.”38 Indeed, such a doctrinewould, by Marbury’s logic, “reduce[] to nothing what we have deemedthe greatest improvement on political institutions — a written consti-tution”!39

Alexander Bickel, writing more than forty years ago in his classicbook, The Least Dangerous Branch, made this same observation aboutMarbury’s logic, but went exactly the wrong way with it. It wasperhaps true, Bickel conceded to John Marshall, that to leave thequestion of constitutionality to the legislature would, absurdly, “allowthose whose power is supposed to be limited themselves to set thelimits.” But the same could be said of the courts: “[T]he Constitutiondoes not limit the power of the legislature alone. It limits that of thecourts as well, and it may be equally absurd, therefore, to allow courtsto set the limits.”40

For Bickel, this was a weakness in John Marshall’s argument, forsurely Marshall could not have intended to rest the power of judicialreview, and against legislative supremacy, on premises that equallycould be deployed against the supremacy of the judiciary’s constitu-tional determinations! But Bickel, like so many who have followed

35. Id. at 178.

36. Id.

37. Id.

38. Id.

39. Id.

40. ALEXANDER BICKEL, THE LEAST DANGEROUS BRANCH: THE SUPREME COURTAT THE BAR OF POLITICS 3-4 (2d ed. 1988).



him, erred in assuming that the point of Marbury was to establish judi-cial supremacy rather than to demolish legislative supremacy and es-tablish coequal and independent judicial interpretive competence. Theproblem with Bickel’s critique of Marbury was that he assumed thatMarshall was trying to prove the modern Myth of Marbury, whenMarshall was doing nothing of the kind. Bickel could not and did notpoint to any flaw in Marshall’s reasoning — in fact, Bickel’s analysisagrees with my own about where Marshall’s reasoning leads. ButMarbury’s reasoning in that case does not yield the conclusion thatBickel thought it ought to, or needed to, in order to justify modernpractice. That is precisely my point: Marbury’s reasoning and modernconstitutional practice are hopelessly irreconcilable with each other.Marbury’s logic stands opposed to any claim of judicial supremacy —the idea that the other branches are bound by the courts’ actions nomatter what. Bickel’s analysis supports, quite unintentionally, my posi-tion here.41

The attentive defender of judicial supremacy might at this pointinterject that the premise of this extension of Marbury’s reasoning isthat the Court is as likely to err as the political branches. Not at all.The premise is that the Court could err and that there is no more rea-son in principle — and none remotely suggested in the pages ofMarbury — for Branch X to be bound by Branch Y’s errors than forBranch Z to be bound by Branch X’s. Marshall’s whole argument forthe coordinate interpretive competence and independence of the judi-ciary assumes the existence of an unconstitutional action by anotherbranch. In such an instance, it is “an absurdity too gross to be insistedon” to require a coordinate branch to be bound, within the province ofits duties, to enforce or acquiesce in such an act, contrary to the para-mount law of the nation. Nowhere does Marshall say that “unconstitu-tional” is defined by whatever a court, and a court alone, says. Rather,he treats “unconstitutional” as an objective fact — whether somethingis unconstitutional is determined, interestingly enough, by what theConstitution says.42

It is at this point that Marshall turns, finally, to specific constitu-tional provisions, which he uses not as proof-texts of judicial suprem-acy but as examples of the absurdity of requiring that courts be bound,within the sphere of their power and in the performance of their du-ties, by a plain violation of the Constitution perpetrated by anotherbranch. In each case, the argument can be turned around and appliedto interpretation of the Constitution by the executive and legislativebranches.

41. See Paulsen, The Most Dangerous Branch, supra note 11, at 245.

42. I will have more to say about this below. See infra Section III.E (arguing that one ofthe implications of Marbury is that the proper controlling methodology of constitutionalinterpretation is textualism.)



The judicial power of the United States is extended to all cases arisingunder the constitution. Could it be the intention of those who gave thispower, to say that in using it the constitution should not be looked into?That a case arising under the constitution should be decided without ex-amining the instrument under which it arises? This is too extravagant tobe maintained.

In some cases, then, the constitution must be looked into by thejudges. And if they can open it at all, what part of it are they forbidden toread or to obey?43

Flawlessly logical. But the same logic applies, for example, to thePresident: the executive power of Article II extends to all matters ofenforcement or execution of U.S. law. Moreover, the President is spe-cifically charged to “take Care that the Laws be faithfully executed,”presumably including the Constitution as the paramount law of theNation, and further obliged to swear an oath to “preserve, protect, anddefend the Constitution of the United States.”44 Could it be the inten-tion of those who gave this power, and imposed a duty of faithfulnessto the Constitution, to say that in carrying it out the Constitutionshould not be looked into? That a situation arising under theConstitution should be decided without examining the instrumentitself? This, like a similar disability on the courts, “is too extravagantto be maintained.” In some case, the Constitution must be looked intoby the President. If he can open it at all, what part is he forbidden toread?

The point is particularly easy to make with respect to thePresident, because the constitutional provisions giving him power andresponsibility to “take Care” to faithfully execute the laws and to“preserve, protect, and defend” the Constitution are remarkably clearin assigning duties that require interpretation of the Constitution.Indeed, I have had some students advance the view, which I allude toabove, that the Constitution in express terms makes the President, notthe courts, the special “Guardian of the Constitution”! One need notgo so far in order to make the simpler point that Article III’sassignment of “the judicial Power” to decide cases “arising under theConstitution” does not, in a regime of separation of powers, create asuperior power of constitutional interpretation than does Article II’sassignment of a duty to “preserve, protect, and defend theConstitution of the United States.”

The same point can be made (albeit more awkwardly) with respectto Congress, and indeed with respect to all who exercise power underthe Constitution. Every act of Congress is an implicit act of constitu-


44. See U.S. CONST. art. II, § 3 (“[H]e shall take Care that the Laws be faithfully exe-cuted . . . .”); U.S. CONST. art. II, § 1, cl. 8 (prescribing presidential oath to “preserve, protectand defend the Constitution of the United States”).



tional interpretation concerning the scope of its Article I (or otherlegislative) powers. Under the logic of Marbury, if Congress is obligedto consider the question of the constitutional propriety of its actions,could it be the intention of those who imposed such an obligation tosay that, in making the determination, the Constitution itself shouldnot be looked into?

Marshall then proceeds with hypothetical examples of constitu-tional questions that easily could come up in a case appropriate for ju-dicial resolution.

There are many other parts of the constitution which serve to illus-trate this subject. It is declared that “no tax or duty shall be laid on arti-cles exported from any state.” Suppose a duty on the export of cotton, oftobacco, or of flours; and a suit instituted to recover it. Ought judgmentto be rendered in such a case? Ought the judges to close their eyes on theconstitution, and only see the law?

The constitution declares that “no bill of attainder or ex post facto lawshall be passed.” If, however, such a bill should be passed, and a personshould be prosecuted under it; must the court condemn to death thosevictims whom the constitution endeavors to preserve?

“No person,” says the constitution, “shall be convicted of treason un-less on the testimony of two witnesses to the same overt act, or onconfession in open court.” Here the language of the constitution is ad-dressed especially to the courts. It prescribes, directly for them, a rule ofevidence not to be departed from. If the legislature should change thatrule, and declare one witness, or a confession out of court, sufficient forconviction, must the constitutional principle yield to the legislative act?

From these, and many other selections which might be made, it is ap-parent, that the framers of the constitution contemplated that instrumentas a rule for the government of courts, as well as of the legislature.45

Once again, Marshall’s logic is impeccable. And once again, it iseasy to turn these hypotheticals into situations calling for executive orcongressional interpretation of the Constitution, and pose the samerhetorical questions: Should Congress “close its eyes” to theConstitution before passing a law that is arguably a bill of attainder oran ex post facto law, or imposing an export duty on articles from a par-ticular state, deferring such constitutional questions to (possible) sub-sequent judicial determination? If the courts’ precedents would up-hold such a law in instances where Congress reads the Constitution toforbid such action, should Congress close its eyes? Or is it at leastcompetent to judge for itself, within its province?46 What if Congress

45. Marbury, 5 U.S. (1 Cranch) at 179-80.

46. More problematically, if the courts’ precedents would strike down such a law ininstances where Congress reads the Constitution to permit such action, is Congress bound tosee only the judicial decision, and not the Constitution? Congress may have the prerogativeof independent constitutional interpretation in such a case, but it has no power to require the



passed, and the courts upheld, an unconstitutional tax or duty, or a billof attainder or ex post facto law, or convicted a man of treason on thestrength of the testimony of one witness rather than two? Would thePresident be bound to execute the law, shutting his eyes to theConstitution? If Congress should pass such a law, and a prior admini-stration brought a prosecution pursuant to it, and a court wrongly“condemn[ed] to death those victims whom the constitution endeavorsto preserve,” must the President go along?

There are, of course, some difficult questions posed by a theorythat permits multiple actors independently to interpret theConstitution, particularly the question of which interpretation will orshould prevail.47 But my point here is simply that none of the hy-potheticals posed by Marshall remotely suggests judicial exclusivity oreven judicial priority in constitutional interpretation. They all involveconstitutional questions of a type that could (and should) be consid-ered in the ordinary course of business of the legislative and executivebranches. There is nothing uniquely judicial about them, so as to sug-gest in any way that constitutional interpretation is a uniquely judicialactivity. Marshall’s point — the crux of his argument for an independ-ent power of judicial review — is that constitutional supremacy im-plies independent interpretive power because, once it is assumed that acoordinate branch might depart from the Constitution, it becomes ab-surd to say that one of the other coordinate branches is bound to ratifythe error and is foreclosed from looking directly to the words and logicof the document itself.

Marshall’s third major argument in support of judicial review flowsfrom the judges’ oath to support the Constitution. Up to this point,Marshall’s opinion has had the feel of a straightforward, deductivemathematical proof. It is only when he gets to the oath that the opin-ion becomes genuinely impassioned.48 Immediately after stating thatthe Constitution is “a rule for the government of courts, as well as ofthe legislature,” Marshall asks:

Why otherwise does it direct the judges to take an oath to support it?This oath certainly applies, in an especial manner, to their conduct intheir official character. How immoral to impose it on them, if they wereto be used as the instruments, and the knowing instruments, for violatingwhat they swear to support!

judiciary to agree and abandon its independent interpretive power. This leaves open thequestion of whether it is legitimate for Congress, in pressing a position that probably willprove futile, to impose the costs of proving such futility on individual litigants. But that inthe end is a question more of prudence and policy than of constitutional power.

47. For a discussion of how a decentralized model of constitutional interpretive powermight work, see Paulsen, The Most Dangerous Branch, supra note 11, at 321-42.

48. See id. at 257-58.



* * *

Why does a judge swear to discharge his duties agreeably to theconstitution of the United States, if that constitution forms no rule for hisgovernment? if it is closed upon him, and cannot be inspected by him?

If such be the real state of things, this is worse than solemn mockery.To prescribe, or to take this oath, becomes equally a crime.49

A crime! Marshall takes the oath requirement very seriously;indeed, the founding generation as a whole took oath-taking ex-tremely seriously.50 Article VI of the Constitution requires that alllegislative, executive, and judicial officers, both of the United Statesgovernment and of the governments of the states, “be bound by Oathor Affirmation, to support this Constitution . . . .”51 And, as we havealready observed, Article II of the Constitution prescribes a specialoath for the President, under which he is required to swear or affirmthat he will, to the best of his ability, “preserve, protect and defend theConstitution of the United States.”52

The implication of Marshall’s argument from the oath requirementis obvious: Marbury is no argument for judicial supremacy in constitu-tional interpretation. It is an argument for the personal constitutionalresponsibility of all who swear an oath to support the Constitution toresist and refuse support to usurpations or violations of thatConstitution by all others. To paraphrase Marbury once again, whydoes the Constitution require that members of Congress, thePresident, other federal judges, state judges, state legislatures, andstate executives, all swear an oath to discharge their duties agreeablyto the Constitution of the United States if that Constitution forms norule for their government? If it is closed to them, and cannot beinspected by them? “If such be the real state of things, this is worsethan solemn mockery. To prescribe, or to take this oath, becomesequally a crime.”53


50. See Michael Stokes Paulsen, Dirty Harry and the Real Constitution, 64 U. CHI. L.REV. 1457, 1486-90 (1997) (discussing centrality and seriousness of oath requirements forsworn testimony to understanding the original meaning, in social context, of the FifthAmendment privilege against self-incrimination); Paulsen, The Most Dangerous Branch,supra note 11, at 257 & n.150 (discussing oath requirements and their importance in thefounding generation).

51. U.S. CONST. art. VI, cl. 3.

52. U.S. CONST. art. II, § 1, cl. 8.

53. Marbury, 5 U.S. (1 Cranch) at 180. I develop the Oath Clause argument at greaterlength in other work, drawing as well on President Andrew Jackson’s reliance on the oath insupport of his veto, on constitutional grounds that had been rejected by the Supreme Court,of the bill rechartering the Bank of the United States. Paulsen, The Most Dangerous Branch,supra note 11, at 257-62.



Again, Alexander Bickel is an unwitting ally in my cause. Here ishis critique of Marshall’s argument on this point:

Far from supporting Marshall, the oath is perhaps the strongest textualargument against him. For it would seem to obligate each of these officers,in the performance of his own function, to support the Constitution. . . .Surely the language lends itself more readily to this interpretation thanto Marshall’s apparent conclusion, that everyone’s oath to support theConstitution is qualified by the judiciary’s oath to do the same, and thatevery official of government is sworn to support the Constitution as thejudges, in the pursuance of the same oath, have construed it, rather thanas his own conscience may dictate.54

Hold the phone a minute: What makes this latter alternative“Marshall’s apparent conclusion”? Is this anything other than themodern Myth of Marbury read back into the case from a distance of acentury and a half? Bickel was right, that the oath would seem to obli-gate each of these officers, in the performance of his own function, tosupport — and thus independently interpret, according to Marbury —the Constitution. But Bickel was wrong in thinking that this furnishesany sort of argument against Marshall’s conclusion, for the simple rea-son that Bickel was wrong about what Marshall’s conclusion was.

The Oath Clause is an important argument in Marbury. It isMarshall’s icing on the cake of his proof of judicial review, a moralclincher that is Marshall’s distinctive addition to the well-accepted ar-gument for judicial review. And it is one, as we shall see in a moment,that has important implications in its own right, for it is the only purelytextual (as opposed to structural or inferential) argument in Marburythat supports independent interpretive power by agencies of state gov-ernment.

The final substantive paragraph of Marbury ends the opinion withwhat is, comparatively, a whimper. “It is also not entirely unworthy ofobservation,” Marshall writes, half-heartedly, that the SupremacyClause of Article VI lists the Constitution first, in its listing of whatconstitutes the “supreme law of the Land” and gives a similar status tostatutes “made in pursuance of the constitution.” This is only weaksupportive evidence of a power of judicial review, because theSupremacy Clause proceeds to say that the judges “in every state”shall be bound by that supreme law. Still, Marshall notes, theSupremacy Clause “confirms and strengthens the principle, supposedto be essential to all written constitutions, that a law repugnant to theconstitution is void; and that courts, as well as other departments, arebound by that instrument.”55

54. BICKEL, supra note 40, at 8 (emphasis added).




Once again, the concluding paragraph is hard to square with thejudicial supremacist Myth of Marbury. If “courts, as well as other de-partments” are “bound by that instrument,” it would seem to followthat the other departments are bound to hold the courts, as well aseach other, to “that instrument” and to serve as independent interpre-tive checks against deviations from the Constitution’s commands.

III. MARBURY’S IMPLICATIONS

If Marbury’s logic is right, then nearly all of our contemporaryconstitutional practice is wrong. The myth of judicial supremacy thatstands at the center of constitutional law today — the notion that theSupreme Court’s decisions are final and binding on all other actors inour constitutional system, no matter what, so that all that reallymatters in constitutional law is the Supreme Court’s decisions andprecedents — is utterly groundless as a matter of first principles of theConstitution. The myth finds no support in the text, structure, or his-tory of the Constitution.56 Instead, it rests on a complete misreading ofthe case that is supposed to be the source and justification for themyth: Marbury.

What if we were to take Marbury’s logic seriously on its own terms,and apply faithfully its core propositions: constitutional supremacy,interpretive independence, and the personal responsibility conferredby the oath to support the Constitution? In this Section, I will sketch,in broad strokes, four seemingly radical but entirely logical implica-tions of Marbury, and a fifth implication that is not at all radical butalso presents an indictment of present constitutional practice. My firstfour propositions are:(1) the existence of a power of “executive review” parallel to the power

of judicial review;(2) the existence of a coequal power of congressional constitutional in-

terpretation;(3) the unconstitutionality of the doctrine of stare decisis in constitu-

tional law; and(4) the existence of a legitimate power of state government officials to

engage in independent federal constitutional interpretation, inmatters within their province.My fifth proposition, somewhat less controversial than the others,

is that Marbury’s conception of written constitutionalism implies aparticular methodology of constitutional interpretation: originalist tex-tualism — that is, the binding authority of the written constitutional

56. I have developed this specific proposition and supporting evidence at length in otherwriting, and will not repeat those points here. See Paulsen, The Most Dangerous Branch, su-pra note 11, at 228-62, 292-321; Paulsen, Nixon Now, supra note 12, at 1349-58.



text, considered as a whole and taken in context, as its words andphrases would have been understood by reasonably well-informedspeakers or readers of the English language at the time.

A. “Executive Review”

It is, emphatically, the province and duty of the executivedepartment to say what the law is. Those who apply the law to par-ticular instances — and execution of the law is a quintessential exam-ple of applying the law to particular cases — must of necessity ex-pound and interpret the law in the course of performing such duties.57

The President applies the law. The Constitution is a rule for the gov-ernance of the President (and his subordinates58), as well as for thecourts and for Congress. Indeed, as noted, that instrument commandsthe President to “take Care that the laws be faithfully executed.”59 Thelaws of the nation include its Constitution, which is listed first inArticle VI’s description of the “supreme law of the Land.” AsMarbury correctly holds, the Constitution is the “paramount law ofthe nation,” and is thus of superior obligation to other sources of law,like statutes and even judgments of the courts. The President is spe-cifically assigned the sworn duty to “preserve, protect and defend theConstitution of the United States.” It follows that, in carrying out hisexecutive duties as President, the President must give effect to theConstitution in preference to a statute, or judicial decree, in caseswhere they conflict. Again to borrow Marbury’s words, “[t]hat is ofthe very essence of [presidential] duty.”60 If a statute, or a judicial rul-ing, be in opposition to the Constitution, such that the President musteither take action conformably with the Constitution or conformablywith the act of Congress or decision of the judiciary, he must choose— and he must choose the Constitution.

If, therefore, the President is to regard the Constitution, and to re-gard it as superior to any ordinary act of a subordinate institution cre-ated under it, must he close his eyes on the Constitution, and see only

57. Cf. Marbury, 5 U.S. (1 Cranch) at 177 (using parallel language with respect to thejudicial department).

58. The structure of Article II, which vests the executive power solely in “a President,”binds all other executive branch officers to the President’s constitutional interpretation whenexercising executive power on the President’s behalf. See Michael Stokes Paulsen,Protestantism and Comparative Competence: A Reply to Professors Levinson and Eisgruber,83 GEO. L.J. 385, 387-88 (1994) (stating that “[t]he situation of subordinate executive offi-cials raises a special problem” in that “[t]he President is the executive branch” and subordi-nates have no constitutional right or authority to substitute their views for his, but nonethe-less have a moral obligation not to act in violation of their sworn oaths to support theConstitution — a moral obligation that might require resignation in some circumstances).

59. U.S. CONST. art. II, § 3, cl. 4.

60. Marbury, 5 U.S. (1 Cranch) at 178. (“That is of the very essence of judicial duty.”).



the act of Congress, or the decision of the courts? Why does he swearan oath to preserve, protect, and defend the Constitution if it is closedto him? The oath certainly applies in a special manner to thePresident’s conduct in his official character. How immoral to impose iton him, if he must be used as the instrument, and the knowing instru-ment, for violating what he has sworn to preserve, protect, and de-fend! To require the President to swear such an oath, yet require him,when persuaded that another branch has acted inconsistently with theConstitution, nonetheless to enforce its statute or its judicial judgment,makes a solemn mockery of the oath.

The argument for “executive review” — the power and duty of thePresident to exercise independent legal judgment and review of thevalidity of the actions of both other coordinate branches — is thus al-most exactly parallel to the argument for judicial review set forth inMarbury. The President is bound by the Constitution. He is not boundby acts of other branches, where those acts are contrary to theConstitution, and he is not bound by those branches’ views concerningthe constitutional propriety of their own acts, if indeed those views arewrong by the lights of the Constitution itself. Rather, the Presidentpossesses an independent power of constitutional review of the actionsof the other branches in any matter that falls within the sphere of hisgoverning powers as President under Article II of the Constitution.This means that, just as the Supreme Court may, indeed must, refuseto apply an unconstitutional statute of Congress, so too the Presidentmay, indeed must, refuse to carry into execution an unconstitutionalstatute of Congress. That is precisely the same situation as Marbury:constitutional legal review of an act of Congress. But executive review,by the same logic, also means that the President may, indeed must, re-fuse to execute or carry out a decision of the judiciary that exceeds thelimits the Constitution has imposed on that branch. This is constitu-tional legal review of the decisions of courts. Such a view stands in op-position to the operative premises of our constitutional system today.Almost no constitutional scholar today embraces such a view, but itfollows inexorably from the logic of Marbury.61 Certain provisions of

61. I have set forth this argument, derived in part from Marbury and in part from otheroriginalist sources, at length (with important qualifications and refinements) in earlierwriting. See Paulsen, The Most Dangerous Branch, supra note 11. A few have followed thelogic of this argument ninety percent of the way or better, see, e.g., Steven G. Calabresi,Caesarism, Departmentalism, and Professor Paulsen, 83 MINN. L. REV. 1421 (1999); GaryLawson & Christopher D. Moore, The Executive Power of Constitutional Interpretation, 81IOWA L. REV. 1267 (1996), but I believe that no other scholar follows the logic of Marburyin this regard all the way to its logical conclusion. See Paulsen, Nixon Now, supra note 12, at1355-57, n.66 (responding to these ninety-percenters); see also Michael Stokes Paulsen, TheMerryman Power and the Dilemma of Autonomous Executive Branch Interpretation, 15CARDOZO L. REV. 81 (1993) (arguing that there ultimately is no middle ground between thecompeting premises of judicial supremacy and the coordinacy of the several branches of thefederal government).



the Constitution might be read as imposing specific restrictions on thePresident’s power to act on his independent interpretation of theConstitution;62 the power might be restrained by principles of interpre-tive restraint and method;63 and the power is of course subject to thecheck of the other branches’ exercise of their independent interpretivepowers. But in principle, the President’s power of constitutional inter-pretation is closely parallel to the courts’. Thus, the Supreme Court’sinterpretations of the Constitution, federal statutes, and treaties nomore bind the President than the President’s or Congress’s interpreta-tions bind the Court. All of this, I submit, follows from Marbury, ifone reads Marbury for what it says rather than for what it has beenmisappropriated to mean.

B. “Congressional Review”

If the presidency’s awesome and wide-ranging constitutionalpowers and strategic position, combined with independent interpretiveauthority, make it “The Most Dangerous Branch,”64 it is not an un-checked branch. Not only the courts but also Congress have a powerand province of constitutional interpretation. Congress interprets theConstitution, implicitly or explicitly, all the time, in the course of per-forming its legislative duties. Indeed, it is no exaggeration to say thatCongress interprets the Constitution every time it enacts a law, im-plicitly asserting that its enactment is within the scope of its constitu-tional powers. Congress may employ its legislative powers (and addi-tional powers not strictly “legislative” in character) to check the errantor willful interpretations of the President or of the courts, and toadvance its own views of the proper interpretation of constitutionalprovisions.

Marbury, of course, is all about independent judicial review of actsof Congress. But the premises and logic of Marbury — constitutionalsupremacy, interpretive coordinacy, and the responsibility of all whoswear to support the Constitution to be guided by the document itselfand not by the misinterpretations of the other branches — fully sup-port a province and duty of Congress independently to interpret theConstitution. The Constitution governs Congress, along with the other

62. Paulsen, The Most Dangerous Branch, supra note 11, at 288 (“There are, of course,certain provisions of the Constitution the best reading of which specifically restricts thepower of the executive branch to enforce its understanding of the law against individualswithout the assent of some judicial actor.”); id. at 288-92 (discussing the binding interpretivepower of grand and petit juries in criminal cases, and the limited “gatekeeper” role of thejudiciary in preserving this “trump-everybody” interpretive province of the jury).

63. Id. at 331-43 (discussing principles of “deference,” “accommodation” and “executiverestraint”).

64. This is the title of my earlier article on executive branch constitutional interpretivepower. Paulsen, The Most Dangerous Branch, supra note 11.



branches, and the Constitution’s requirements are paramount, takingprecedence over both presidential actions and judicial decrees that ex-ceed the limits of those branches’ constitutional powers. MustCongress nonetheless acquiesce in the actions or views of the ArticleII or Article III branches, where such actions depart from the lan-guage of the document? If presidential or judicial action repugnant tothe constitution is void, does it, notwithstanding its invalidity, bindCongress, and oblige it to give effect to this action (assuming Congresspossessed an effectual power with which to resist, or defeat, suchunconstitutional executive or judicial action)? That would be, inMarbury’s words, to overthrow in fact what was established in theory.And it would also require senators and representatives to violate theiroaths: Article VI mandates that all members of Congress swear anoath to support the Constitution. Such oath, by Marbury’s lights,would be a solemn mockery — and to swear it would be “a crime” —if Congress were forbidden to read the Constitution itself and inquiredirectly into the constitutional validity of acts of the other branches,but instead relegated to a role of docile servility to the constitutionaldeterminations of one or both of the other branches.

Marbury’s logic thus yields the same conclusion for Congress as itdoes for the President: Congress is not bound by the constitutionalviews of either the President or the Supreme Court in the exercise of itsconstitutional powers, and may press its views with all the constitutionalpowers at its disposal.

And Congress has quite a number of such powers, some with po-tentially sweeping consequence. Congress (the Senate alone, actually)possesses a substantial role in checking appointments of both execu-tive and judicial officers, and it properly may exercise its power in thisarea based on its vision of how the Constitution should be interpretedand applied by the executive branch and by the courts.65 Congress pos-sesses substantial control over the jurisdiction and remedial authorityof the federal courts, including the Supreme Court, and may employthat power to rein in an imperial judiciary.66 Congress possesses broad

65. U.S. CONST. art. II, § 2, cl. 2 (Appointments Clause). See generally Michael StokesPaulsen, Straightening Out The Confirmation Mess, 105 YALE L.J. 549, 562-78 (1995) (mak-ing the argument for this proposition in detail).

66. U.S. CONST. art. I, § 8, cl. 9 (power to “constitute tribunals inferior to the SupremeCourt”); U.S. CONST. art. I, § 8, cl. 18 (power to make laws “necessary and proper forcarrying into Execution . . . all other Powers vested by this Constitution in the Governmentof the United States, or in any Department or Officer thereof”); U.S. CONST. art. III, § 1(reference to “such inferior Courts as the Congress may from time to time ordain and estab-lish”); U.S. CONST. art. III, § 2, cl. 2 (allocation of jurisdiction among federal courts subjectto “such Exceptions, and under such Regulations as the Congress shall make.”). On thepower of Congress over matters of judicial practice, procedure, and remedies, see Waymanv. Southard, 23 U.S. (10 Wheat.) 1, 21-22 (1825) (“That a power to make laws for carryinginto execution all the judgments which the judicial department has power to pronounce, isexpressly conferred by [the Necessary and Proper Clause], seems to be one of those plain



discretion to enact laws “necessary and proper” for carrying into exe-cution the powers of the judicial department. This discretion includesthe power to prescribe rules of decision, procedure, and evidence thatcan substantially constrain judicial decisionmaking and, quite possibly,require the courts to hew to Congress’s vision of the Constitution’stext, structure, and intent.67 As the ultimate trump card, Congress alsopossesses the power to impeach (the House of Representatives) andremove (the Senate) executive or judicial officers for “high crimes andmisdemeanors,” a term that does not have a fixed, determinatemeaning and, I submit, legitimately can extend to violations by an ex-ecutive or judicial officer of his or her constitutional oath and constitu-tional responsibilities, as determined by the ultimate independentjudgment of the House and the Senate.68 Thus, Congress may impeachand remove a President whom Congress sincerely believes has acted indeliberate violation of the Constitution or of his constitutional duties,as interpreted (presumably in good faith) by Congress. Likewise,Congress may impeach and remove federal judges, including justicesof the Supreme Court, who in the ultimate judgment of Congress, actin deliberate violation or disregard of the Constitution or otherwisewillfully ignore, manipulate, or disregard controlling law.

That last proposition, of course, is utter blasphemy in the constitu-tional world dominated by the Myth of Marbury. In a regime of judi-cial interpretive supremacy, impeachment of justices on the groundthat their decisions deliberately and flagrantly violate the Constitution(and thus violate their oaths) makes no sense. The justices’ decisionsare the Constitution. Impeachment on such a ground reflects a basicconfusion on the part of Congress.69

But if the correct understanding of Marbury, and of theConstitution, is that no branch has interpretive supremacy; that eachbranch has independent interpretive power within its own sphere; andthat the standard governing each, and to which each is required to ad-

propositions which reasoning cannot render plainer. The terms of the clause neither requirenor admit of elucidation.”).

67. See generally Wayman, 23 U.S. at 21-22. For a defense of congressional power toprescribe rules of judicial decision, see Michael Stokes Paulsen, Abrogating Stare Decisis byStatute: May Congress Remove the Precedential Effect of Roe and Casey?, 109 YALE L.J.1535, 1567-99 (2000) [hereinafter Paulsen, Abrogating Stare Decisis by Statute] (collectingcases and examples); Michael Stokes Paulsen, Lawson’s Awesome (Also Wrong, Some), 18CONST. COMM. 231 (2001) (responding to objections to this view).

68. See generally Michael Stokes Paulsen, Impeachment, in 3 ENCYCLOPEDIA OF THEAMERICAN CONSTITUTION 1340 (L.W. Levy et al. eds., 2000).

69. A judicial supremacist Supreme Court (that is to say, the Supreme Court of the pastfifty years or so) would quite possibly be prepared to intervene to hold such an impeachmentproceeding unconstitutional, notwithstanding its prior holding that impeachment issues arenonjusticiable “political questions,” see Nixon v. United States, 506 U.S. 224 (1993)), on theground that it interferes with independent judicial power and the Court’s (asserted) finalauthority “to say what the law is.”



here, is the Constitution itself, then impeachment of judges on theground of constitutional infidelity is not confused at all: it is the ulti-mate, and perhaps the only truly effective, means by which Congressmight, with the cooperation of the executive, resist and check a seriesof attempted usurpations of power by the courts.70 There may be im-portant prudential reasons for restraint in the exercise of such a heavy-handed power; some might seriously debate whether impeachment onsuch grounds properly falls within the scope of the power to impeachfor “high crimes and misdemeanors”; but there is no reason in princi-ple why Congress is barred from independent consideration of theseprudential and constitutional questions by reason of a claim that thejudiciary’s decisions are immune from constitutional scrutiny by theother branches.71

In addition to these strong, but blunt, front-end and back-endchecks on interpretive abuse by the other branches, Congress’s prov-

70. The propriety of impeachment of judicial officers for serious, willful disregard of theConstitution or other controlling law is strongly hinted at in two of Alexander Hamilton’spapers of The Federalist describing the judiciary. The Federalist No. 81 contains the most ex-tensive discussion, ending a passage on the lack of danger from judicial usurpations with thepunchline that the impeachment power would serve as a check against such a possibility:

It may in the last place be observed that the supposed danger of judiciary encroachmentson the legislative authority which has been upon many occasions reiterated is in reality aphantom. Particular misconstructions and contraventions of the will of the legislature maynow and then happen; but they can never be so extensive as to amount to an inconvenience,or in any sensible degree to affect the order of the political system. This may be inferred withcertainty from the general nature of the judicial power, from the objects to which it relates,from the manner in which it is exercised, from its comparative weakness, and from its totalincapacity to support its usurpations by force. And the inference is greatly fortified by theconsideration of the important constitutional check which the power of institutingimpeachments in one part of the legislative body, and of determining upon them in theother, would give to that body upon the members of the judicial department. This is alone acomplete security. There never can be danger that the judges, by a series of deliberate usur-pations of the authority of the legislature, would hazard the united resentment of the bodyintrusted with it, while this body was possessed of the means of punishing their presumptionby degrading them from their stations. While this ought to remove all apprehensions on thesubject, it affords, at the same time, a cogent argument for constituting the Senate a court forthe trial of impeachments.

THE FEDERALIST NO. 81, at 453 (Alexander Hamilton) (Isaac Kramnick ed., 1987); see alsoid., NO. 79, at 444 (“The precautions for [the judges’] responsibility are comprised in the ar-ticle respecting impeachments. They are liable to be impeached for malconduct by theHouse of Representatives and tried by the Senate; and, if convicted, may be dismissed fromoffice and disqualified from holding any other. This is the only provision on the point whichis consistent with the necessary independence of the judicial character . . . .”).

71. I hope to develop this theory in future work. For now, I will only respond to one ob-vious objection: that impeachment for faithless constitutional decisions violates the idea ofjudicial independence. “Judicial independence,” however, is not a freestanding constitu-tional command; it is, rather, a consequence of a tenure of “good behavior” and salary guar-antees. “Good behavior” is properly understood as a description of tenure in office, not itselfan impeachment standard, but that merely returns one to the question of whether deliberatedisregard of the Constitution, in violation of one’s oath, could be considered a “high crimeor misdemeanor” (the standard that Article II imposes on all “Officers of the UnitedStates,” a term that includes judges, see U.S. CONST. art. II, § 4) and the further questionwhether Congress has independent constitutional power to construe and apply this provi-sion, or must accede to judicial interpretations of it.



inces of constitutional interpretation also include the power to pro-pose constitutional amendments; the coequal power to interpret ex-tremely important constitutional provisions, like the Thirteenth, Four-teenth, and Fifteenth Amendments, that Congress explicitly has beengiven the power to “enforce” through legislation72; and, indeed, thelegislative power generally, including the vitally important appropria-tions power. As noted, every legislative enactment by Congress is, in asense, an act of constitutional interpretation — an implicit assertion byCongress that it has constitutional power to do what it is doing. And,whenever such an assertion runs up against the contrary views of thePresident or the courts, Congress legitimately may press its independ-ent constitutional views with all the legislative powers at its disposal. Itmay not bind the other branches with its views, of course: that is theabsolutely foundational principle of Marbury. But it follows by thesame reasoning that the other branches may not bind Congress either.Congress has as much right to interpret the Constitution as does theSupreme Court, and arguably possesses greater powers with which topress its views.

C. The Unconstitutionality of Stare Decisis

If Marbury is right, the judicial doctrine of stare decisis — the prac-tice of generally adhering to precedent “whether or not mistaken” —is wrong.73 Stare decisis is, of course, not required by the Constitution,as even the Supreme Court concedes.74 But even more fundamentally,when used in this strong sense of adhering to precedents even ifwrong, stare decisis is unconstitutional. (In any other sense, stare deci-

72. The Supreme Court has recently said that Congress does not have coequal power tointerpret and apply the Thirteenth, Fourteenth, and Fifteenth Amendments, but is limited toenforcing judicial understandings of those amendments. See City of Boerne v. Flores, 521U.S. 507 (1997). But that judicial view of the scope of Congress’s power is, by the logic of theargument from Marbury sketched in the text, neither sound as a matter of principle norbinding on Congress when Congress is acting within its sphere. For persuasive argumentsthat City of Boerne is wrong in its specific interpretation of the scope of Congress’s legisla-tive power to enforce the provisions of the post-Civil War Amendments, see Michael W.McConnell, Institutions and Interpretation: A Critique of City of Boerne v. Flores, 111 HARV.L. REV. 153 (1997); Steven A. Engel, Note, The McCulloch Theory of the FourteenthAmendment: City of Boerne v. Flores and the Original Understanding of Section 5, 109 YALEL.J. 115 (1999).

73. The “whether or not mistaken” formulation comes from Planned Parenthood v.Casey, 505 U.S. 833, 857 (1992), the Supreme Court’s most ambitious exposition of the doc-trine of stare decisis. I have explained elsewhere why this is the core of the doctrine. Paulsen,Abrogating Stare Decisis by Statute, supra note 67, at 1538 n.8. In short, the idea of adheringto precedent, as an independent duty, has bite only if a court would decide the case differ-ently absent such a supposed duty. Id. at 1538 n.8.

74. As to the nonconstitutional status of the doctrine, see Paulsen, Abrogating Stare De-cisis by Statute, supra note 67, at 1537 n.1 (collecting cases acknowledging that the doctrine isone of judicial policy and not constitutional requirement); id. at 1543-51 (discussing andanalyzing same).



sis is simply irrelevant, or deceptive: a court that invokes the doctrineto justify a decision it was prepared to reach on other grounds isadding a makeweight, or using the doctrine as a cover for its judgmenton the merits.)

Consider again what Marbury says: The Constitution is supreme,paramount law, superior in obligation to other law. The judges arebound by the Constitution; the instrument is a rule for the governmentof courts. Imagine if you will — it isn’t hard to do — a judicial decisionthat is not consistent with the Constitution; that ignores its provisions,or construes them wrongly; or where the Court has plainly exceededthe limits marked out by the Constitution’s allocation of powers.Marbury says, with respect to legislative actions of such description,that “[t]he constitution is either a superior, paramount law, unchange-able by ordinary means, or it is on a level with ordinary legislative acts,and like other acts, is alterable when the legislature shall please to al-ter it.”75 The same holds true of judicial actions that depart from theConstitution: The Constitution is either a superior, paramount law,unchangeable by ordinary means, or it is alterable when the judiciaryshall please to alter it. A doctrine of stare decisis that holds that afaithless judicial interpretation of the Constitution at time T1 isbinding at time T2 is a doctrine of judicial alteration of the paramountlaw. If the Constitution is not alterable whenever the judiciary shallplease to alter it, then “a [judicial precedent] contrary to the constitu-tion is not law;” and if the alternative is true, that the Constitution isalterable at the judiciary’s option, “then written constitutions are ab-surd attempts, on the part of the people, to limit a power in its own na-ture illimitable.”76

The idea of precedent is almost sacrosanct to lawyers, conditionedby the common law and the case method, so much so that few haveexamined carefully its premises and whether those premises are com-patible with a system that purports to accord primacy to a written, en-acted text. But on what principle may one generation of judges pur-port to transform its power to decide cases into a prospective power tobind future judges in future cases? On what principle may a judge in alater case abandon his or her sworn duty to uphold the Constitution bydeliberately following a precedent that the judge believes is inconsis-tent with that Constitution? Under the reasoning of Marbury, theConstitution must always be given preference over the faithless acts ofmere government agents that depart from it. The Constitution isparamount law, and must take precedence (so to speak) over prece-dents that depart from it.77

75. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).

76. Id.

77. The argument in this paragraph owes much to a short article by Professor GaryLawson several years ago. Gary Lawson, The Constitutional Case Against Precedent, 17



It follows, I submit, that no court should ever deliberately adhereto what it is fully persuaded are the erroneous constitutional decisionsof the past. To do so is to act in deliberate violation of theConstitution. The judicial doctrine of stare decisis — the idea thatcourts should (as they sometimes say they do, and as they sometimesin fact do) adhere to the principles of prior cases even when persuadedthat those principles are wrong as a matter of the correct interpreta-tion of the Constitution or other controlling federal law — is funda-mentally inconsistent with the Constitution and with the logic ofMarbury itself. The doctrine should be repudiated entirely in the areaof constitutional law.78

And that goes for lower courts, too. Why should lower courtjudges be bound by higher court precedent, including Supreme Courtprecedent, where they are fully persuaded that the precedent is notconsistent with the Constitution itself? Marbury says the Constitutionis supreme; that departures from it cannot be regarded as binding; thatthe Constitution supplies a rule for the government of courts; and thatthe oath requires that its takers be guided by their best understandingof the Constitution and not pliantly accede to deviations perpetratedby others. All of these points apply to lower court judges — state andfederal — who are called upon to decide cases arising under theConstitution and swear Article VI’s mandated oath to support it. Un-less some other constitutional provision trumps or ousts Marbury’sreasoning as applied in this context — the words “supreme” and “infe-rior” in Article III are plausible candidates, but do not necessarily im-ply anything more than a hierarchy in which a higher court may reviewand reverse the judgment of a lower court, and do not transform suchlower court judges into mere law clerks or potted plants79 —

HARV. J.L. & PUB. POL’Y 23, 27-28 (1994) (“If the Constitution says X and a prior judicialdecision says Y, a court has not merely the power, but the obligation, to prefer theConstitution.”); see also Charles J. Cooper, Stare Decisis: Precedent and Principle inConstitutional Adjudication, 73 CORNELL L. REV. 401, 408 (1988) (arguing that “judges areoath-bound to rule in accordance with the Constitution, not with prior opinions interpretingthe Constitution”); Michael Stokes Paulsen, Captain James T. Kirk and the Enterprise ofConstitutional Interpretation: Some Modest Proposals from the Twenty-Third Century, 59ALB. L. REV. 671, 680 (1995) [hereinafter Paulsen, Captain James T. Kirk and the Enterpriseof Constitutional Interpretation] (“[S]tare decisis is not just another bad idea. It is, I think,unconstitutional.”).

78. Of course, I invoke Marbury as persuasive authority only; by its own reasoning, itwould not be controlling if it were wrong on the point in question. And it is wrong on manyother points. See Paulsen, Marbury’s Wrongness, supra note 17. But for those who worship atthe altar of precedent, it is at the very least rather ironic that Marbury v. Madison, widelyregarded as the foundational case of all constitutional law — a worthy precedent if everthere were one — logically dictates that precedent can never be regarded as controllingwhere it departs from a proper understanding of the Constitution.

79. See Michael Stokes Paulsen, Accusing Justice: Some Variations on the Themes ofRobert M. Cover’s Justice Accused, 7 J.L. & RELIGION 33, 77-88 (1989) [hereinafter Paulsen,Accusing Justice] (arguing that the word “supreme” only requires that the Supreme Court bea court of final jurisdiction in the sense that no appeal lies to another court; that the word



Marbury’s logic applies for lower courts as well as others. Thus, alower court may, and arguably must, “underrule” (to coin a term)80

Supreme Court precedents that depart from a sound reading of thewritten Constitution. The Supreme Court usually will have theauthority and jurisdiction to review and reverse such lower court un-derrulings; such jurisdiction is consistent with Article III and the con-stitutional structure generally.81 But that does not mean that the lowercourt judges are personally required to abet the constitutional viola-tion. They can, and should, make the Supreme Court do its own dirtywork. They can, and must, exercise their own (reverse-able) constitu-tional interpretive power independently, and correctly.

D. State Interposition and Nullification

The terms “interposition” and “nullification” are practically consti-tutional profanities these days. The terms are associated with seces-sionists of the mid-nineteenth century and segregationists of themid-twentieth, both of whom employed somewhat warped notions ofstate interpretive authority in the service of the most unjust of causes.But the correctness of a constitutional theory cannot be judged by itsmisappropriation and misapplication by constitutional hijackers, in-cluding South Carolina’s John Calhoun, the name most prominentlyassociated with the theory.82

The doctrines of interposition and nullification have reasonably re-spectable roots. The idea of independent state authority to interpretthe Constitution — and to resist asserted violations of the Constitutionby the instrumentalities of the national government — dates back atleast a half-decade before Marbury, to the Virginia and KentuckyResolutions of 1798 and 1799, and James Madison’s “Report of 1800”for the Commonwealth of Virginia.83 Indeed, they can claim support

“inferior” does not mean subordinate in the sense of being an agent of a principal; and thatArticle III provides for the structural equivalence of all federal judges). The phrase “pottedplants” comes from Sanford Levinson, On Positivism & Potted Plants: “Inferior” Judges andthe Task of Constitutional Interpretation, 25 CONN. L. REV. 843 (1993) (making a similarsuggestion).

80. Paulsen, Accusing Justice, supra note 79, at 82 (defending power of lower courtjudges to “underrule” Roe v. Wade, if fully persuaded of its incorrectness as a matter ofconstitutional interpretation).

81. See Cohens v. Virginia, 19 U.S. (6 Wheat.) 264 (1821); Martin v. Hunter’s Lessee, 14U.S. (1 Wheat.) 304 (1816).

82. For an excellent historical treatment of nullification, see WILLIAM W. FREEHLING,PRELUDE TO CIVIL WAR: THE NULLIFICATION CONTROVERSY IN SOUTH CAROLINA1816-1836 (1965). For a lucid untangling of the assorted (and sordid) constitutional theoriespropounded at various times on this subject, see DANIEL FARBER, LINCOLN’SCONSTITUTION 26-91 (2003).

83. The Virginia and Kentucky resolutions, the Answers of several other states’ legisla-tures, and Madison’s Report are reprinted in 4 ELLIOTT’S DEBATES, at 528-80 (2d ed. 1891).



earlier yet, in the political theory of federalism and state checks on na-tional power set forth in The Federalist.84

Interestingly, the idea of state government authority to interpretthe federal Constitution finds much to commend it in the reasoning ofMarbury: the Constitution is supreme, not the actions of subordinateagencies under it; departures from the Constitution thus cannot be re-garded as obligatory and binding lest we overthrow in fact what is es-tablished in theory; and those who swear an oath to support theConstitution must interpret it faithfully and independently and couldnot have been intended to have been forced to violate theirconsciences by accepting the unsound constitutional judgments of oth-ers. Again, all these points apply to state government officials who arecalled on to consider federal constitutional issues within the sphere oftheir state government functions, and who likewise swear an oath,pursuant to Article VI, to support the Constitution. True, officers ofstate governments are not coordinate departments of the nationalgovernment, as Congress, the President, and the judiciary are. Buteverything else in Marbury applies, and Marbury makes as much of

84. For strong indications of support for this position in The Federalist, see THEFEDERALIST NO. 28, at 206-07 (Alexander Hamilton) (Isaac Kramnick ed., 1987) (“If therepresentatives of the people betray their constituents, there is then no resource left but inthe exertion of that original right of self-defense which is paramount to all positive forms ofgovernment, and which against the usurpations of the national rulers may be exerted withinfinitely better prospects of success than against those of the rulers of an individualstate. . . . Power being almost always the rival of power, the general government will at alltimes stand ready to check the usurpations of the state governments, and these will have thesame disposition towards the general government. The people, by throwing themselves in toeither scale, will infallibly make it preponderate. If their rights are invaded by either, theycan make use of the other as the instrument of redress. . . . It may safely be received as anaxiom in our political system that the State governments will, in all possible contingencies,afford complete security against invasions of the public liberty by the national authority. . . .[P]ossessing all the organs of civil power and the confidence of the people, they can at onceadopt a regular plan of opposition, in which they can combine all the resources of the com-munity.”); id. NO. 33, at 225 (“But it will not follow from this doctrine [i.e., the SupremacyClause of Article VI] that acts of the larger society which are not pursuant to its constitu-tional powers, but which are invasions of the residuary authorities of the smaller societies,will become the supreme law of the land. These will be merely acts of usurpation, and willdeserve to be treated as such.”); id. NO. 44, at 290 (noting that the people, by the “election ofmore faithful representatives,” may “annul the acts of the usurpers. The truth is that this ul-timate redress may be more confided in against the unconstitutional acts of the federal thanof the State legislatures, for this plain reason that as every such act of the former will be aninvasion of the rights of the latter”); id. NO. 51, at 321 (“In a single republic, all the powersurrendered by the people is submitted to the administration of a single government; and theusurpations are guarded against by a division of the government into distinct and separatedepartments. In the compound republic of America, the power surrendered by the people isfirst divided between two distinct governments, and then the portion allotted to each subdi-vided among distinct and separate departments. Hence a double security arises to the rightsof the people. The different governments will control each other, at the same time that eachwill be controlled by itself.”); id. NO. 84, at 478 (“The executive and legislative bodies ofeach State will be so many sentinels over the persons employed in every department of thenational administration . . . .”).



the idea of constitutional supremacy, and of the obligation of the oath,as it does the coordinacy of the branches of the federal government.

It follows, I submit, that state government officials, who likewiseswear an oath to support the U.S. Constitution as “supreme law of theLand,” are not bound to submit docilely to unconstitutional actions ofthe agencies of the national government. By the logic of Marbury, theycannot be bound by the erroneous constitutional views of organs ofthe national government, but are empowered, even required, to inter-pret the Constitution directly. But note that, just as Marbury’s proof ofindependent judicial authority to interpret the Constitution does notproperly imply judicial interpretive supremacy, neither does the exis-tence of state interpretive competence imply state interpretive omnipo-tence. This, or some modified version of it, was Calhoun’s mistake.States are not bound by federal interpretations, but the federal gov-ernment is not bound by states’ interpretations either.85

The right answer is that every government actor — state andfederal — is sworn to uphold the Constitution, and that none is themaster of the others in terms of what adherence to that oath requires.Each branch of the federal government possesses coequal interpretiveauthority with the others and may seek to make its interpretation ofthe Constitution “stick,” so to speak, with the constitutional powers atits disposal.86 So too state government actors possess, by virtue of their

85. The same holds for state secession. President Abraham Lincoln’s argument againstsecession is absolutely sound: the Constitution confers no unilateral, plenary right of a stateto secede. No state has a right to secede that the Nation as a whole must honor — a state’sinterpretation does not, and cannot, bind the national government. See Lincoln, FirstInaugural Address, reprinted in 2 ABRAHAM LINCOLN, SPEECHES & WRITINGS, 1859-1865:SPEECHES, LETTERS, MISCELLANEOUS WRITINGS, PRESIDENTIAL MESSAGES &PROCLAMATIONS 218 (“[N]o State, upon its own mere motion, can lawfully get out of theUnion . . . .”). But Lincoln also thought it necessary to argue that no violation of theConstitution had occurred that might be thought to justify secession, id. at 219 (“Is it true,then, that any right, plainly written in the Constitution, has been denied? I think not.”), ap-parently conceding the plausibility of the argument that a state might legitimately secede asan extreme remedy for an extremely serious breach of the Constitution by the federalgovernment. Id. at 219 (“If, by the mere force of numbers, a majority should deprive a mi-nority of any clearly written constitutional right, it might, in a moral point of view, justifyrevolution — certainly would, if such right were a vital one. But such is not our case.”).

The question of secession is distinguishable in important respects from the question ofinterposition, but both potentially share the idea that state governments may, and arguablymust, interpret the U.S. Constitution, and may with propriety resist violations of theConstitution by the federal government with whatever powers are available to stategovernments to check such abuses. But the existence of such state interpretive power surelydoes not bind the organs of federal government, which may properly resist state misinterpre-tations or abuses of the Constitution with all the power at their disposal, in order to correctsuch state departures from the Constitution. See, e.g., Grant v. Lee (Appomattox CourtHouse, Apr. 1865). I develop the interposition and secession points at greater length in aforthcoming essay. See Michael Stokes Paulsen, The Civil War as Constitutional Interpreta-tion, __ U. CHI. L. REV. __ (forthcoming 2004).

86. THE FEDERALIST NO. 49, at 313 (James Madison) (Isaac Kramnick ed., 1987) (“Theseveral departments being perfectly co-ordinate by the terms of their common commission,neither of them, it is evident, can pretend to an exclusive or superior right of settling theboundaries between their respective powers.”).



oaths to support the U.S. Constitution and the supremacy of thewritten Constitution over all instrumentalities of the federalgovernment, the prerogative and duty faithfully and independently tointerpret the Constitution of the United States and to resist, with thepowers at their disposal, violations of that Constitution by the federalgovernment. Just as no branch of the federal government has interpre-tive supremacy, no level of government — federal or state — hasinterpretive supremacy. The precise accommodation of conflictingviews is a function of the interaction among branches of governmentand between levels of government.

Now, this should be a bit unsettling. This is Governor GeorgeWallace standing in the schoolhouse door.87 But it is also JamesMadison and Thomas Jefferson leading Virginia and Kentucky in re-sistance to the Sedition Act, and vindicating the Constitution in theelection of 1800. The fact that a constitutional theory or power mightbe misused does not prove that it is wrong. Interposition, like theForce, is a double-edged saber; it can be used for good or for evil, de-pending on how and by whom it is being wielded. This is true of inter-pretive power generally, including quite obviously interpretive poweras wielded by the Supreme Court.88 The true question is whether theConstitution provides for a multiplicity of interpreters, each inde-pendent of the others and armed with only a portion of the constitu-tional power to make their interpretations stick, or instead providesfor a single authoritative interpreter whose decisions are conclusiveand binding on all other actors, even where they are wrong — contraryto the written Constitution that is our paramount law — and evenwhere they are wicked.

Marbury’s answer is that the latter proposition “would subvert thevery foundation of all written constitutions”89 and thus “reduce[] tonothing what we have deemed the greatest improvement on politicalinstitutions.”90 Marbury’s logic endorses instead a multiplicity of voicesin constitutional interpretation, each independent of the others. To the

87. See Paulsen, Captain James T. Kirk and the Enterprise of ConstitutionalInterpretation, supra note 78, at 688 (using the same example). In addition, there are impor-tant theoretical problems with treating a state’s constitutional interpretations as possessingparity with interpretations advanced by organs of the national government, some of whichmay require important qualifications to any theory of state interpretive autonomy — re-finements I hope to develop in future work. For an enlightening brief treatment, seeFARBER, supra note 82, at 45-69. Cf. Paulsen, The Most Dangerous Branch, supra note 11 at312-16.

88. See, e.g., Prigg v. Pennsylvania, 41 U.S. (16 Pet.) 539 (1842); Dred Scott v. Sandford,60 U.S. (19 How.) 393 (1857); Plessy v. Ferguson, 163 U.S. 537 (1896); Lochner v. New York,198 U.S. 45 (1905); Korematsu v. United States, 323 U.S. 214 (1944); Roe v. Wade, 410 U.S.113 (1973). See generally Michael Stokes Paulsen, The Worst Constitutional Decision of AllTime, 78 NOTRE DAME L. REV. 995 (2003).

89. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 178 (1803).

90. Id.



extent that the implications of this position depart greatly from pres-ent constitutional practice — and they do — present practice repre-sents a betrayal of the principles of Marbury v. Madison.

* * * * *

Now, I know what you’re thinking: If this is truly where Marburyleads, following it would be anarchy! Chaos! Madness!

Calm down. Lawyers are lovers of order and prone to see disasterin the slightest degree of disagreement, disequilibrium, and disorder.A multiplicity of voices is not the end of the world. It is simply a de-centralized approach to constitutional interpretation. Decentralizationis not chaos; it is simply the antithesis of centralized interpretiveauthority. It is an example of “checks and balances.” If there is onething we know about the Framers, it is that they feared the concentra-tion of power and sought to prevent it in the design of theConstitution. Would it not be somewhat ironic (and quite unlikely) forthe Framers, so concerned with the division and dispersal of powergenerally, to have concentrated the power to interpret all other powersand to bind all other actors with those interpretations in a single insti-tution or organ of government? Marbury certainly suggests no suchthing; practically every sentence of the opinion points in precisely theopposite direction. The power of constitutional interpretation — thepower, in Marbury’s sonorous words, “to say what the law is” — is notvested in a single, authoritative body, but, like any other power tooimportant to place in a single set of hands, is a divided, shared power.Division and shared responsibility admits of the possibility of dis-agreement, competing interpretations, ongoing tension, struggle, com-promise (or deadlock), and lack of a definitive resolution. In otherwords, it admits of — indeed, virtually assures — exactly what separa-tion of powers is designed to produce as a general proposition. Overtime, and across a broad range of issues, such an arrangement tends toproduce a kind of general equilibrium — not perfect stability or re-pose, but general equilibrium. (Does a regime of judicial supremacyreally do any better than that?) Rough stability in the law is achieved,under such a model, not by the edicts of a centralized authority, but bythe pull and tug of competing interpreters and competing interpreta-tions, none of whom is bound by the views of the others and each ofwhom, armed with separate powers and overlapping spheres ofauthority, may press the interpretation it thinks is truest to theConstitution. Often, this will produce a core of consensus. It will alsooften produce a periphery of uncertainty, especially as to issues onwhich there is no agreed correct resolution. But that is as it should be.Where an issue remains genuinely contested, and the several branchesof government legitimately and in good faith continue to disagree, theissue should remain unsettled.



E. Interpretive Methodology

Ah, you say, but there’s the rub: All of this assumes legitimate dis-agreement, good faith interpretive differences, genuine disputes overconstitutional meaning. What if one branch, or body, advances ahighly idiosyncratic interpretation, not remotely supportable by fairreasoning from the Constitution, and insists, for its own policy orself-interested purposes, on pressing such a position to the wall? De-centralization permits a whole array of opportunities for bizarre, po-tentially destructive interpretive methodologies by any of a number ofactors.

Put to one side for a moment the obvious possibility that a singleauthoritative interpreter might do exactly the same thing, but withoutany other authority supplying an effective check on such interpretiveabuse. Also put to one side that this possibility might well be thoughtby many a fair characterization of the actual practice of the modernSupreme Court under the Myth of Marbury. The rhetorical force ofthis concern lies in the perception that the notion of “interpretation”permits the Interpreter to bend the Constitution to his will; and that,consequently, the only way to constrain the results is to designate anauthoritative interpreter who can slap down everybody else, and tochoose the branch or body least likely to be willful in its own interpre-tations.

Marbury rejects this approach in two ways. First, as already dis-cussed, it eschews the single-authoritative-interpreter approach en-tirely, resting instead on constitutional supremacy and the absurdity(and immorality) of binding one actor with the unconstitutional acts ofanother. The second point is more subtle, but it is implicit throughoutMarshall’s analysis: the whole idea that the Constitution is supremeand that one actor cannot be bound by the unconstitutional action ofanother presupposes that there is some objective meaning to theConstitution that stands on its own, apart from the interpretationsor applications of that document by any particular actor. TheConstitution means what it means. When Marshall uses the hypotheti-cal of a treason conviction based on the testimony of one, rather thantwo, witnesses to the same overt act, he is supposing that the meaningof the provision in question is something that exists independently ofthe interpretation offered by some person or institution, so that anyobjective observer might be able to judge that the person or institutiondoing the interpreting just plain got it wrong. The words and phrasesof the Constitution have discernible, objective meaning. They are notempty vessels waiting to have content poured into them by anInterpreter. Without such an understanding of constitutional meaning,Marbury simply makes no sense.

Marbury, I submit, assumes that the proper way — the only properway — to read the Constitution is to give the words, phrases, and



structures of the text the ordinary, natural or (occasionally)specialized meaning they would have had, in context, to reasonably in-formed readers and speakers of the English language in America, atthe time those words and phrases were employed.91 Marshall does notsay this in so many words, but it is implicit in every step he takes andevery move he makes. The idea that the powers of and limitations ongovernment are written is vitally important, says Marshall, at innumer-able points in Marbury.

The powers of the legislature are defined and limited; and that thoselimits may not be mistaken, or forgotten the constitution is written. . . .Certainly all those who have framed written constitutions contemplatethem as forming the fundamental and paramount law of the nation, andconsequently, the theory of every such government must be, that an actof the legislature repugnant to the constitution, is void. This theory is es-sentially attached to a written constitution, and is, consequently, to beconsidered, by this court, as one of the fundamental principles of oursociety. It is not therefore to be lost sight of in the further considerationof this subject. . . . [To maintain] that courts must close their eyes on theconstitution . . . would subvert the very foundation of all written constitu-tions . . . . That it thus reduces to nothing what we have deemed thegreatest improvement on political institutions — a written constitution —would itself be sufficient, in America, where written constitutions havebeen viewed with so much reverence, for rejecting the construction. . . .[C]ourts, as well as other departments, are bound by that instrument.92

More than that, it is this very writtenness of the Constitution that, inMarbury, supplies both the basis for judicial review and the standardfor judging whether another branch has departed from theConstitution. The paramount authority of the written text is the core ofthe argument for the power of judicial review and the controlling stan-dard for the practice of judicial review. Marbury, quite simply, standsfor textualism as the proper method of constitutional interpretation.93

91. For a defense of this methodology as the proper approach to constitutional interpre-tation, see Vasan Kesavan & Michael Stokes Paulsen, The Interpretive Force of theConstitution’s Secret Drafting History, xxx GEO L.J. xxx (forthcoming 2003) [hereinafterPaulsen, The Interpretive Force]; see also Vasan Kesavan & Michael Stokes Paulsen, Is WestVirginia Unconstitutional?, 90 CAL. L. REV. 291, 398-99 (2002) [hereinafter Kesavan &Paulsen, Is West Virginia Unconstitutional?].

92. Marbury, 5 U.S. (1 Cranch) at 176-78, 180 (emphasis added).

93. Two refinements: first, “textualism” — the authority of the written text — inMarbury’s argument for judicial review includes arguments from the logic of the constitu-tional structure created by the text. In other words, textualism embraces not only specificwords and phrases, but the architecture of the text as well. Marbury is clearly all about thestructure and architecture created by the written text, as well as specific provisions. Second,to say that Marbury embraces textualism as the appropriate interpretive method in constitu-tional law is not to say that Marshall’s analysis of the constitutional text is sound, in all re-spects, throughout the opinion — for example, with respect to his holding that Section 13 ofthe Judiciary Act violates Article III of the Constitution. See Paulsen, Marbury’s Wrongness,supra note 17. Textualism can be the correct method of interpreting the Constitution and



We tend to forget or ignore this, because we are imprisoned by theMyth of Marbury. The myth of judicial supremacy tends to generatethe corollary myth of plenary power over interpretive method.Because what the Court says controls, there is no control over whatthe Court says. The Court’s power “to say what the law is” becomes“the law is what the Court says it is.”94 Whatever the Court says, goes.

What Marbury says, however, is that whatever the Constitutionsays, goes. The courts don’t get to say whatever they want. They are“bound by that instrument.”95 There remains, of course, the enduringquestion about how to interpret that instrument — how to give effectto the authority of the written text — but that is a question to beanswered by a different article.96 For present purposes, it is sufficienthere to note that the actual opinion in Marbury, as distinct from themyth that has grown up around it, rejects modern notions of interpre-tive freedom or interpretive license. The text strictly constrains whatmay with propriety be done in the name of the Constitution. And ifwhat is done in the name of the Constitution is not consistent with thetext, fidelity to “that instrument” requires fidelity to the text, and notwhat has been wrongly done in its name.

Thus, what seems to scare sensible people about coordinate anddecentralized constitutional interpretation is that the interpretersmight think themselves properly possessed of Marbury-Myth-likeinterpretive license to do whatever they like — that they might thinkthat their equal power to say what the law is means that whatever theysay, or whatever they can get away with saying, goes. But is that notsomething of a straw man? If, after all, what is being objected to is thetheory of decentralized constitutional interpretive power, flowing fromthe logic of Marbury’s argument for judicial review, should not one berequired to challenge that theory on grounds consistent with

still admit of some sharp disagreements as to the proper result to be reached by employingthat method in any particular case.

94. Charles Evans Hughes, Speech before the Chamber of Commerce, Elmira, NY(May 3, 1907), in ADDRESSES AND PAPERS OF CHARLES EVANS HUGHES, GOVERNOR OFNEW YORK, 1906 — 1908 at 139 (1908) (“We are under a Constitution. . . . The Constitutionis what the judges say it is.”).


96. Fortunately, Vasan Kesavan and I have written the article that answers thatquestion (!). Kesavan & Paulsen, The Interpretive Force, supra note 91. The correct answer,we submit, is that the Constitution itself (in Article VI’s specification of “[t]his Constitution”as the supreme law of the land, see U.S. CONST. art. VI (Supremacy Clause) (emphasisadded), and the nature of written constitutionalism generally), requires a methodology oforiginal, objective-public-meaning textualism. By that we mean the following: TheConstitution should be interpreted according to the meaning the words and phrases em-ployed would have had, considered in historical context and within the context of the docu-ment as a whole, to an ordinary, reasonably informed reader or speaker of the English lan-guage in the relevant political community at the time the text was adopted as law. See alsoKesavan & Paulsen, Is West Virginia Unconstitutional?, supra note 91, at 398-99.



Marbury’s other assumptions about how interpretive power is legiti-mately to be employed?

To be sure, a “presidential activist” in constitutional interpretationis a dangerous constitutional loose cannon. To be sure, a state gov-ernment that feels free to interpret the Constitution in a manner cutloose from the constraints of the objective, original meaning of thetext’s words and phrases is a dangerous centripetal force. To be sure, ifCongress cares not about the document itself, but decides,Humpty-Dumpty-like, that words mean whatever Congress wantsthem to mean, we could see a great fall. As I have written elsewhere:

The more that interpretive power is conjoined with practical governingpower, the more important it is that interpretive power be constrained bythe relatively clear boundaries of text, intention, and structure.97

If one is to shed the Myth of Marbury, one must shed it completely. Ifone is to embrace Marbury in all its implications, one must embracethose implications fully. And if one does so, that is a constitutionalworld in which multiple actors, exercising their independent interpre-tive power, strive in good faith to check one another and hold eachother to the meaning of the words of the Constitution’s text, and toguard against departures from the nation’s paramount law by any ofthe branches or organs of federal or state government. What awonderful, wonderful world that would be.

IV. CODA

Alas, that is not the constitutional world we inhabit today. Instead,we live in a constitutional world in which the Supreme Court is sultanand a perversion of Marbury v. Madison is our governing constitu-tional myth. The myth is, by now, an ingrained one. The SupremeCourt lives by the myth. The political branches by and large have ac-cepted it.98 And it has been taught as Holy Writ to several generationsof elementary school and law school students. Disentangling our po-litical culture from the Myth of Marbury is not a mere day’s work.

On this, the occasion of Marbury’s 200th anniversary, however, itis worth reflecting on the fact that The Myth is a betrayal ofeverything that Marbury stands for, and a betrayal of the writtenConstitution that Marbury identifies as the appropriate object of ven-eration.

97. Paulsen, The Most Dangerous Branch, supra note 11, at 342.

98. See Paulsen, Nixon Now, supra note 12, at 1358-59 (“The judiciary’s assertion ofhegemony does not make it so, of course. . . . Unfortunately, however, acceptance of thejudiciary’s assertion of hegemony by the other branches tends to validate such hegemony asa practical matter . . . .”).

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Michael Paulsen - PEGC Project to Enforce the Geneva ... Executive/paulsen_myth_of...Michael Paulsen February 18, 2004 PAULSEN PP2.DOC 01/29/04 12:44 PM 601 THE IRREPRESSIBLE MYTH